IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30265 of 2008(C)
1. T.M.SHAFI, AGED 49 YEARS,
... Petitioner
Vs
1. C.L.KHADERKUNHI, AGED 55 YEARS,
... Respondent
2. N.BABU, AGED 61 YEARS, S/O.CHOMA,
For Petitioner :SRI.KODOTH SREEDHARAN
For Respondent :SRI.V.V.ASOKAN
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :14/11/2008
O R D E R
K.P. BALACHANDRAN, J.
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W.P(c) No. 30265 of 2008
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Dated this the 14th day of November, 2008
JUDGMENT
Petitioner is the second defendant in O.S. No.152 of 1996 on the file
of the Munsiff’s court, Kasaragod. It is submitted that the suit was one
instituted by the first respondent for specific performance of an agreement
for sale entered into by him with the 2nd respondent/1st defendant in the
suit. It is also alleged in the plaint that in violation of the agreement to sell
the property to him, the first defendant transferred the property to the
second defendant. The suit was dismissed by the trial court. In appeal, by
Ext. P4 judgment first appellate court decreed specific performance
directing the first defendant to execute and register the sale deed regarding
the schedule property in favour of the appellant/plaintiff after receiving
balance consideration of Rs.250/- and failing which allowing the plaintiff to
get Sale deed executed through court. The decree did not provide for
anything else. The first defendant filed R.S.A No.772 of 2007 against the
decree in the suit and second defendant who is the petitioner herein filed
R.S.A. No.711 of 2008 before this court. R.S.A 772 of 2007 is stated to
have been dismissed in limine vide Exhibit P5 judgment. Petitioner was the
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second respondent in the said R.S.A. When R.S.A was dismissed, he moved
Review Petition No. 796 of 2008 therein advancing his contentions and
claiming right on the basis of sale deed executed by the first defendant in
his favour. It is submitted that the said Review Petition No. 796 of 2008 is
dismissed by this court directing the petitioner herein/the second respondent
in R.S.A. No. 772 of 2007 to agitate his claim in R.S.A No.711 of 2008
filed by him. It is submitted that R.S.A. No.711 of 2008 is pending before
this court and is not disposed of. If so, obviously petitioner can agitate his
rights in R.S.A No.711 of 2008. All the same, he also filed a claim petition
and an obstruction petition before the execution court, when the first
respondent/decree holder moved for execution advancing claim to the
schedule property on the ground that he has purchased property from the
first defendant in the suit. Those petitions are E.A. No.317 of 2008 and 328
of 2008 filed invoking provisions under Order XX1 Rule 97,98 and 99 of
Code of Civil Procedure. The execution court took the view that being
defendant in the suit he would be bound by the decree and in any event he
cannot advance a claim to the decree schedule property invoking Order
XX1 Rules 97,98 and 99 of the Civil Procedure Code and dismissed the
claim petitions as not maintainable vide Ext.P9 order. It is the correctness of
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the Exhibit P9 order that is assailed by the petitioner in this writ petition,
wherein he has prayed for quashing of Exhibit P9 and for direction being
given to the Munsiff Court, Kasaragod to take back Exhibit P7 and pass
orders on merits and keep in abeyance all execution proceedings in Exhibit
P6.
2. The dismissal by the court below of Exhibit P7 claim petition
filed by the petitioner/second defendant by Exhibit P9 order, as being not
maintainable cannot be faulted as he was a defendant in the suit bound by
the decree. But all the same, being the second defendant in the suit and
having been impleaded as judgment debtor in Exhibit P6 execution
petition, the petitioner/2nd defendant has all rights to resist the execution of
decree by advancing all contentions available to him, otherwise than
resorting to Rules 97, 98 and 99. If so advised he may file objection to the
execution petition whereupon the court below shall be bound to consider
those contentions on merit. He shall also be entitled to advance all his
contentions assailing the decree passed by the first appellate court in R.S.A.
711 of 2008 filed by him if that right is reserved by the order of this court
passed in R.P.No.796 of 2008 in R.S.A.No.772 of 2007, as submitted and
as stated in paragraph 6 of statement of facts filed in this writ petition.
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When those remedies are open, there is no scope for this court to interfere
exercising jurisdiction in this writ petition, especially, when Exhibit P9
order dismissing the claim petition as not maintainable, cannot be faulted in
the circumstances.
3. In the result, I dismiss this writ petition. If the petitioner/second
defendant files any objection to the executability of the decree before the
execution court, the court shall consider those objections on merits and
dispose it before ordering delivery of the property to the decree holder.
With the above direction, this writ petition is disposed of. Petitioner
to produce a copy of this judgment before the execution court to enable that
court to comply with the directions.
K.P. BALACHANDRAN, JUDGE
scm